BOUNDARY 



BETWEEN 



PANAMA AND COSTA RICA 



ARGUMENT 



UPON THE JURISDICTION AND POWER OF THE ARBITRATOR 



SUBMITTED 

TO THE 

HONORABLE THE CHIEF JUSTICE OF THE UNITED STATES 

OF AMERICA 

BY 

BELISARIO PORRAS 



PRESIDENT OF THE REPUBLIC OF PANAMA AND FORMERLY ENVOY EXTRAORDINARY 

AND MINISTER PLENIPOTENTIARY IN CHARGE OF THE DEFENCE OF THE 

TERRITORIAL RIGHTS OF PANAMA IN THE ARBITRAL BOUNDARY 

LITIGATION WITH THE REPUBLIC OF COSTA RICA 



/^ /S-'Zl^^trc, 



BOUNDARY 



BETWEEN 



PANAMA AND COSTA RICA. 



ARGUMENT 
Upon the Jurisdiction and Power of the Arbitrator. 



SUBMITTED 

TO THE 

Honorable the Chief Justice of the United States of America, 

BY 

BELISARIO PORRAS 

President of the Republic of Panama and formerly Envoy Extraordinary and 

Minister Plenipotentiary in charge of the defence of the territorial 

rights of Panama in the arbitral boundary litigation 

with the Republic of Costa Rica. 






KpS 



D. of D. 
FEB \\ 191S 



To THE Honorable the Chief Justice of the Supreme Court of 
THE United States : 

Article VII of the Boundary Convention of March 17, 1910, pro- 
vides that Your Honor's Award, whatever it be, shall be held as a 
perfect and compulsory treaty between the high contracting parties, 
both binding themselves to the faithful execution thereof and waiv- 
ing all appeal against it ; but this, however, is not an authorization 
to disregard the terms of Article I of said Convention, whereby 
Your Honor is appointed Arbitrator, and which defines the question 
upon which your decision is to be made. It refers to the award 
which you may make within those obligatory terms, whatever it may 
be, or however it affects Costa Eica or Panama, as otherwise Article 
VII of the Convention would be in opposition to Article I as being 
contradictory of and incompatible with it. Otherwise, no explana- 
tion could be found for the work, the extreme care and diligence 
used in the negotiation of the Arbitral Convention under considera- 
tion, nor the purpose in view in defining, as they were defined, 
the differences between the two countries, that is the controversy 
or question between them, and, finally, in establishing, as it was 
established, without leaving room for doubt, at the end of the dis- 
cussion, what is the point upon which the Arbitrator is to render 
his judgment. 

Article I of the Arbitral Convention establishes that Your Honor 
is to draw the boundary line between Panama and Costa Rica under 
and most in accordance with the correct interpretation and true in- 
tention of the Award of the President of the French Republic, 
of September 11th, 1900, and by this it appears plainly that said 
Award has been accepted by both parties, that it is binding and 
that the only thing involved is to interpret it correctly, and to 
ascertain its true intention. But this, which is thus made so plain, 



can be shown even more clearly than by the Convention itself, 
where the discussions necessary to reach an agreement were crystal- 
lized, by the history preceding such agreement. 

The Award of the President of the French Republic put an end 
to the old boundary question existing between Colombia, to which 
Panama has succeeded in this respect, and Costa Rica. Both con- 
tending nations had submitted this question to the Arbitral decision 
of the President referred to, by virtue of a Convention or Com- 
promis concluded between the two nations, similar to the present 
one, in which the following formal declaration was made : that the 
decision which the Arbitrator chosen should render, was to be held 
as a perfect and compulsory treaty to the faithful execution of 
which their national honor was thenceforth pledged. 

On September 11, 1900 the Arbitral Award was rendered at 
Rambouillet, the parties concerned being immediately notified of 
the fact. Colombia, to whose rights in this question Panama has 
succeeded, fully accepted it. For her the boundary line that would 
in future separate her from Costa Rica was that established by 
the Award. Colombia's claims had extended further north, as far 
as Cape Gracias d Dios, just as the claims of Costa Rica extended 
further south, down to the Escudo de Veraguas. But, Colombia 
accepted the boundary line aM'arded, and also that the frontier 
should have an invariable natural boundary, such as the summits of 
the hills and mountains. The Communication of the Minister of 
Colombia in Costa Rica, Mr. Lorenzo Marroquin, dated February 
27, 1901, shows this acceptance. Panama, which became separated 
from Colombia not long after the Award was rendered, accepted 
this tradition. For her the Award was the law, and she could 
not consent to its disavowal. Moreover upon a certain occasion, 
when willing to make concessions to Costa Rica, Panama demanded 
that as a preliminary step Costa Rica should publicly and solemnly 
declare its acceptance of that Award. It had been agreed with 
Costa Rica, before the Arbitral Award was rendered, that it was 
to be held as a perfect and compulsory treaty, and it was held 
as such. 



Costa Rica also accepted the Award. The communication 
of the Minister, Mr. M. M. de Peralta, who was Costa Eica's 
representative in Paris, addressed to the Minister of Foreign 
Affairs of France, Mons. Delcasse shows that the Arbitral Award 
was neither rejected nor impugned. As to the line itself, he 
interpreted it as he understood it, over a certain portion of the ter- 
ritory, as indicated in the first paragraph of the Arbitral Award. 
This establishes that the line runs along the division of waters be- 
tween the Atlantic and the Pacific, to a point near the ninth degree 
(9°) of latitude, thence along the divide between the Chiriqui 
Viejo and the affluents of Golfo Dulce to Punta Burica, and up to 
this point the Minister of Costa Rica was in accordance with the 
Award. As regards the line which, according to the Award, 
runs from Punta Mona along the spur of the Cordillera which 
starts from that Punta, the Minister only followed the language 
of the Award as to the Punta, that is,, the extreme limit, and with 
the spur extending thence up to a certain point where a line 
running West-Southwest, would extend to the mouth on the Tarire 
or Sixaola river, of the Yorquin or Zhorquin river, near meridian 
82° 50' West of Greenwich, 85° 10' West of Paris and 9' 33' north 
latitude, thence crossing the thalweg of the Tarire or Sixaola on 
the bank of the Yorquin or Zhorquin, and thence south toward the 
Central Cordillera along the range which divides the basins of the 
Yorquin on the East and the Ur^n on the West. 

Of course this was an arbitrary interpretation, and His Excel- 
lency the President of the French Republic did not accept it. The 
Arbitral Award plainly stated that " the frontier between the 
Republic of Colombia and the Republic of Costa Rica shall be 
formed by the spur of the Cordillera which starts from Cape 
Mona on the Atlantic Ocean, and closes on the north the Valley of 
the Tarire or Sixaola river, and thence by the chain of division of 
waters between the Atlantic and the Pacific." There is no confusion 
in such statement. The Arbitral Award does not lay courses, nor 
state meridians or degrees nor direct the crossing of any river. 
It contains a general indication, natural and unmistakable. A 



boundary judge could do no more. The line which he traced is 
unchangeable : a spur which starts from a certain point and ends 
at the Main Cordillera. If he had indicated a part of the spur and 
thence had designated rivers and plains he would have had to go 
into details concerning the point of the spur where the line leaves 
it, the name of the river to which it runs, the bank of that 
river at which it stops ; whether it crosses any thalweg or 
continues along the course of its waters and how far ; 
whether it extends to its source or to another river, and so on. 
There was no occasion for designating meridians. Where did Mr. 
Peralta find them ? They are not mentioned in the Award, and this 
alone shows that his indication of such meridians is entirely per- 
sonal and arbitrary. Minister Delcasse politely and diplomatically 
refused his consent to the biassed interpretation made by that 
Minister. The frontier of the Award is the legal frontier. The 
physical or material frontier, with its details, and precise deter- 
mination must be the result of otber proceedings. All boundary 
suits, even in the case of private estates, always consist of two 
parts, one on the subject of boundaries proper, in which rights are 
discussed, which ends with the recognition of such rights, and 
following a general line of visible indications, more or less lacking 
in definiteness, and the second part, or the surveying or placing of 
boundary posts, for the marking out by surveyors or engineers of 
the points of the boundary line by means of permanent objects or 
marks, leaving no room for future doubts or discrepancies. 

In his acceptance of the Award the representative of Costa Rica 
went so far as to suppose that there would be no doubt that the 
line of the Arbitral Award would be physically fixed within the 
limits of the disputed territory, as shown by the text of Articles II. 
and III. of the Paris Convention of January 20, 1886. 

Said Articles provide : 

" Akticle II. The territorial boundary that the Eepublic 
of Costa Eica claims, on the side of the Atlantic extends as 
far as 



5 

" The territorial boundary that the United States of Co- 
lombia claims extends, on the side of the Atlantic, to Cape 
Gracias d Dios, inchisive 

" Article III. The Arbitral Award shall be limited to 
the disputed territory, which lies within the extreme boundaries 
already described 



Minister Delcass6 replied upon this point wholly in conformity 
with the representations made by the Minister of Costa Eica. The 
frontier line indicated in the Award of the President of the French 
E-epublic did not go beyond the extreme boundaries mentioned in 
Article II. of the Paris Convention of January 20, 1886, nor could 
it have been placed outside said extreme limits, at the time of its 
physical determination. Cape Gracias d Dios, in fact, is far to the 
north of the spur of the Cordillera which starts from Cape Mona, 
and far to the north of the Cordillera with which the spur is con- 
nected. 

Why imagine or suppose for a moment, that the line of the 
Arbitral Award might be, physically, not drawn within the limits 
of the disputed territory ? Such an uncertainty must have arisen in 
the mind of the representative of Costa Eica either through a sug- 
gestion or error. Without doubt, when the Award was rendered the 
Representative of Costa Kica, in interpreting it, did not remember 
the Paris convention which defined the extreme limit of the Colom- 
bian claims, and had only in mind the Brief which, in his capacity 
as Counsel for Colombia, was submitted by Mr. Francisco Silvela. 
I have quoted above Articles II and III of the Convention and 
hereunder I will transcribe the description of the boundary pro- 
posed in the Brief of Counsel, which is as follows : 

" Starting at the mouth of the Eiver Golfito, on Golfo 
Dulce, on the Pacific side, the line follows a northerly course 
on a meridian traversing the River Coto, which empties into 
the Pacific, and crossing the Laii and Coen rivers, tributaries 
of the Tiliri or Sigsaula river, whose waters empty into the 
Atlantic, meets said Tiliri or Sigsaula river at a point 



about 9° 33' north latitude. From the point of interception 
of said meridian with the Tiliri or Sigsaula River, a point 
the geographical co-ordinates of which are about 9° 33' 
north latitude and about 85° 31' 30" longitude west of the 
Paris meridian, a straight line is drawn which ends at the 
mouth of the Sarapiqui river on the River San Juan or 
Desaguadero (10° 43' north latitude and 86° 15' longitude 
West of the Paris Meridian)." 

A cursory glance suffices to show that the text of the Brief is 
not the same as that of Articles II and III of the Convention of 
1886, concluded between the two interested countries, but 
though not the same they are not contradictory. The Con- 
vention only pointed out the extreme points without stating 
by what line they could be connected. The boundaries of the 
territory claimed by Colombia extended, on the side of the Atlantic 
as far as Cape Gracias d, Dios, and those claimed by Costa Rica as 
far as Escudo de Veraguas. The Convention was and must 
have been the law. The counsel for one of the parties may have 
drawn an imaginary line in his Brief, and have stated that from 
such and such a point the line runs to such another point and turns 
in such a direction and runs by such and such a route to the extreme 
point, without binding to this course the party for whom he was 
speaking and without obligation to the other party. The statement 
may have been more or less based on truth, but it did not go beyond 
a lawyer's device. What really bound the parties, and above all, 
the Arbitrator, was the Convention, which in Article III, says : 
" The Arbitral Award shall be limited to the disputed territory 
within the extreme limits already described." These extreme limits 
already described were no other than those of Article II which, 
with regard to Colombia, simply states that " they extend on the 
Atlantic side as far as Cape Gracias d Dios, inclusive " ; so that 
the Arbitral Award of the President of France, without going be- 
yond said Cape, instead of confining itself to saying that the line 
followed the spur of the Cordillera, and then the Cordillera enclos- 
ing the valley of the Tarire or Sixaola river, had fixed another line 



farther north and farther west than this one, it would not have gone 
beyond the extreme limits described in the Convention, because, 
even in such case. Cape Gracias & Dios, the only extreme limit 
would still be far to the north. 

The description of a boundary line by the Counsel, Silvela, 
was entirely arbitrary, as was arbitrary the interpretation of the 
Loubet Award made by the Eepresentative of Costa Rica in Paris, 
because, while the Colombian domain extended as far as Cabo Gra- 
cias A Dios, according to numberless colonial documents, in none of 
these documents the boundary was drawn with precision. For 
instance, when the Province of Veragua was created, the King and 
Queen of Spain simply stated that the Province extended to Cape 
Gracias d Dios. When the " Audiencia " and Eoyal Chancery of 
Panama in Terra Firma was created, it was stated, in like manner, 
that its district embraced the Province of Castilla de Oro as far as 
Portobelo and its lands, the town of Natd and its lands, the Govern- 
ment of Veraguas, etc. In none of these creations, unbounded, in a 
way, were the precise boundaries established, and this was also the 
case when on August 20, 1739, the Viceroyalty of Santa Fe or New 
Kingdom of Granada was created. It was merely stated that the 
King had decided to add to the new Viceroyalty the provinces of 
Panama, Portobello, Veragua and Darien. It was said simply as 
above stated, without defining what were the boundaries of each of 
these provinces. Nor could these boundaries be fixed, because they 
were unknown. If in our day, with all the facilities at hand for 
making explorations and for travel, with the improvements attained 
in the instruments necessary to locate all places, with the increase 
of population and the development of wealth, we do not know well 
the extent and size of our own territorial possessions in America, 
how could the Kings of Spain, or even their agents, the conquerors 
and settlers in the newly discovered land know them ? It was 
impossible. At most they were acquainted with the coast, and 
when establishing as a boundary a certain point, a cape, or the 
mouth of a river on the coast, then they were sure of their marks. 
In the interior the territory was only known in part, but the geo- 



8 

graphical co-ordinates could not be determined. The discoverer 
crossed a certain territory, but could not give at once an accurate 
description covering its whole extent. Speaking a tongue different 
from that of the aborigines, the discoverer very frequently mistook 
names. The wild tribes inhabiting the land did not speak the same 
tongue among themselves, so that for instance, if a tribe occupying 
the upper portion of a river spoke a language different from that of 
the tribe occupying the lower portion, the river was known by sev- 
eral names which the conqueror often took to represent different 
streams. There are many instances of this all over the American 
continents. In the territory under discussion the Tarire or 
Sixaola river is a striking example of the foregoing assertion. 
Under these circumstances, think for a moment what the maps 
of those times would be ! It is, therefore, a mistake, a serious 
mistake, to undertake to apply to-day to modern maps the lines 
of the conquerors or discoverers of America. Old ideas can- 
not be measured by the standards of to-day. Aside from 
these considerations, there existed no maps at the time, or 
what there were, were full of mistakes, and subject, in conse- 
quence, to countless corrections. The Province of Veragua had 
no precise and unmistakable boundaries. It extended as far as Cape 
Gracias a Dios, and this extreme limit was the only boundary 
really known. When Colombia and Costa Rica decided to sub- 
mit to arbitration their differences, they did not pretend to draw 
out definitely the extent of their respective claims. Is Mr. Silvela's 
statement of any decisive value ? And shall the value of such state- 
ment, which does not bind even Colombia, be of greater weight 
before the Arbitrator than the value of the Arbitral Convention, 
which set down the limitations within which the Arbitral Award 
must be made ? 

The Silvela line arbitrarily cuts through the Sixaola river, 
while that of the Award embraces the entire river and the whole 
valley without any cuts. Can it be imagined, that, be- 
cause it embraces the entire valley without cutting it, as 
the Silvela line did, the line defined by the Award ex- 



9 

ceeds the extreme limits ? An answer to tlais will be 
found in the Arbitral Convention which was the law for 
the parties concerned and especially so for the Arbitrator. The 
line of the Arbitral Award, therefore, not even by a stretch of 
imagination exceeds or goes beyond the boundaries of the disputed 
territory, but on the contrary is within said limits, wholly com- 
prised within them. 

I believe that the Eepresentative of Costa Rica was thinking of 
none of these things. He forgot the force of the Convention and 
that it draws no lines, but states only the limits or extreme points 
of the respective claims. The Silvela line crosses arbitrarily the 
Sixaola Eiver, and that of the Award includes the whole river and 
the whole valley without crossing them. Can it be conceived that, 
becaiise it includes the whole valley and does not cross it, as does 
the Silvela line, that of the Award goes beyond the extreme limits ? 
The answer to this question is in the Arbitral Convention, which 
was the law for the parties and especially for the Arbitrator. 

Besides, the Representative of Costa Rica did not undertake 
to accept the Award of his own authority. Both in the matter of 
the recognition of the true intent of the Award, to leave a natural 
frontier to both republics, as well as in the interpretation which he 
gave to a portion of the line, he acted on behalf and under instruc- 
tions of his Government. The President of Costa Rica, Mr. Rafael 
Iglesias, in fact, reported to the Congress of his country in 
his message of May 1, 1901, that is, eight months after the 
Award had been rendered, that as soon as he was notified of the 
Arbitral decision he instructed his Minister in Europe to communi- 
cate to the High Arbitrator the manner in which Costa Rica under- 
stood the first paragraph of the Award. There is not one single word 
in the message to show that it was impugned. There is not one 
single act of that Congress repudiating the Arbitral Award. On 
the contrary, the reading of that portion of the message 
dealing with the case shows the acceptance of the Arbitral Award. 
President Iglesias says : " It is only to be regretted that the 
Arbitral Award was not accompanied by a map of the dis- 



10 

puted territory which, while serving as an explanation and sup- 
plement, would have saved at the time of the physical demar- 
cation possible difficulties growing out of the circumstance that 
the topography of that territory and the general terms of the 
Award lend themselves to different locations of the dividing line." 
The Award was, then, law for Costa Rica, too, and was accepted by 
her. Its generality was natural, as is the generality of every 
law. The Award establishing the boundaries between the same 
Republic of Costa Rica and that of Nicaragua was also general, 
and such has been the case with all boundary awards rendered 
up to the present time. It is to be regretted that the determina- 
tion of frontiers is always general and not precise, and this is why 
the first determination of the boundaries of a country is always 
followed by its physical demarcation, through commissions of en- 
gineers who settle the particular cases. 

The acceptance or assent of the Republic of Costa Rica to the 
Award defining its boundaries with Panama, has not only been 
given by President Iglesias, just mentioned, but also by his Min- 
ister of Foreign Relations, Mr. Ricardo Pacheco. When invited 
by the Minister of Colombia, Mr. Lorenzo Marroquin to attend 
the physical act of setting up the monuments, he was 
willing to do so. Based on the mistaken idea that the Arbitral 
Award of President Loubet exceeded the extreme limits of the 
Colombian claim; he only asked that Colombia and Costa Rica 
should come in advance to an understanding regarding that point, 
which, otherwise, he considered as settled by Minister Delcasse. 
How could the line extend beyond the extreme claim of Colombia, 
when the extreme point was hundreds of leagues beyond the frontier 
indicated ? It did not go beyond, but this had been maintained as 
a last subterfuge. Even in case it were so, the declaration of 
M. Delcass^ had corrected any defect. Minister Pacheco has 
stated that the opinion of Costa Reca tended to preserve intact the 
virtue of the Award, and, on the other hand was supported in this 
by the opinion of the Arbitrator. It was not only the opinion of 
the Arbitrator, but also that of Colombia in the first place and 



11 

that of Panamd, afterwards. Costa Rica wanted it so ; Panamd has 
wanted it no less nor wanted anything else ; so that, if any defect 
existed, since Minister Delcass6 declared that undoubtedly the 
physical line should be drawn within the extreme territorial limits 
claimed, such defect had been expurgated forever. 

In a preceding paragraph I have stated that once, when Panama 
was willing to grant concessions to Costa Kica, notwithstanding her 
desire to do so to a neighboring and friendly country in the course 
of direct negotiations, she requested, nevertheless, first and above 
all the acceptance of the Award of the President of the Republic 
of France, under date of September 11, 1900. This took place 
when Costa Rica sent to Panama a Minister for the purpose of 
negotiating a treaty. The Minister signed at the time a document 
declaring most solemnly that the Loubet Arbitral Award had ended 
forever the boundary dispute between the two countries. The 
Award was accepted once more by Costa Rica ; it was the law that 
could not be evaded, a perfect and binding treaty for compliance 
with which both countries had pledged their national honor. 

But this is not all. Sometime later, another President of Costa 
Rica, Mr. Oleto Gonzalez Viquez also recognized the force of the 
Award, and its irrevocable and final character in a message which, 
like the one of President Iglesias, was addressed to the representa- 
tives of the Costa Rican people in Congress assembled. This was 
on May 1, 1909, almost on the eve of the negotiation of the Arbitral 
Convention, the spirit of which I am analyzing. President 
Gonzalez-Viquez says in his message, that " the boundary question 
with Panama is about to be settled. * * * " " * * * The 
Pacheco-Guardia Treaty having lapsed, he was proceeding — if 
there did not exist between both countries an agreement defining 
their boundary line — to determine which of the two interpretations of 
the Loubet Arbitral Award is the one in conformity with the spirit of 
the decision, and to this end to have recourse to a new arbitration." 

In his message there is not one single expression impugning the 
Loubet Arbitral Award. The message refers to interpretation 
only, not to rejection of the Award. Laws and treaties are 



12 

interpreted witliout destroying their validity ; contracts are inter- 
preted in the same way ; decisions are likewise subject to interpre- 
tation. Under any pretext, or for any reason whatever, one 
of the parties gives to a decision an interpretation which the 
other party does not find to be in accordance with truth, and the 
decision is open to interpretation. This is the case in which Costa 
Eica has placed Panama, and Panama has accepted out of deference 
to Costa Rica, notwithstanding the fact that Panama has found 
nothing doubtful or vague in the Award. 

At that time the Government of Costa Rica had requested the 
mediation of the American Government. President Gonzalez- 
Viquez message alluded undoubtedly to such mediation when stating 
that he was already proceeding to determine which of the two 
different interpretations of the Loubet Arbitral Award was more 
in conformity with the spirit of the decision. In fact, steps tending 
toward the mediation had already been taken in Washington through 
a Minister of Costa Eica on Special Mission, and through the 
American Minister in Panama. Panama declined to submit the 
boundary question to a new decision. She appointed a Minister to 
San Jose de Costa Rica for the purpose of dealing with the question 
through direct negotiation, and had already determined that in 
case of failure of such direct negotiations she would submit to the 
enlightened consideration and decision of the Honorable the Chief 
Justice of the . United States any point or points which might be 
a cause of disagreement in fixing the boundary line, in accordance 
with the Loubet Arbitral Award. So says the note of the Secre- 
tary of Foreign Relations of Panama to the American Minister, 
Mr. Herbert G. Squiers. Under no consideration would Panama 
consent to enter into a new litigation to obtain an award different 
from the one rendered by the President of the French Republic, 
she would only allow a collateral decision afi'ecting any point or 
points that might be a cause of disagreement upon fixing the 
physical boundary of the Arbitral Award, always maintaining the 
Award as the Supreme law. 

The direct negotiations were not successful, and once the Amer- 



13 

ican mediation accepted Panama sent to the Department of State 
of the United States a Memorandum concerning its rights. This 
Memorandum was based on the principle of the acceptance of the 
Loubet Arbitral A. ward, in conformity with the tradition of Pan- 
ama, consistent with the supreme respect due to arbitral decisions. 
The Memorandum was presented by the Minister of Panama accred- 
ited to Washington to the Secretary of State of the United States, 
who, in acknowledging receipt by his note of October 20, 1909, 
and after expressing his satisfaction at the cordial attitude of 
Panama in accepting the good offices of the American Government 
for the settlement of the boundary dispute with Costa Eica, 
referred to what constituted the difference or pending question 
between the two countries. The Chief Justice — he said — will render 
a final decision of " the question as to which of the tiuo boundary 
lines between Panama and Costa Rica is the correct one." 

As this expression was very vague, the Minister of Panama at 
Washington requested of the Honorable the Secretary of State, 
on October 23, to be enlightened on this point. Costa Eica had her 
line, and Panama, in general terms, had that of the Loubet Arbitral 
Award ; but it was important to ascertain if the lines which 
the Department of State so vaguely mentioned were these 
two lines or those in dispute between Costa Eica and Panama. The 
Honorable the Secretary of State, Mr. Philander C. Knox, replied 
on November 2, 1909, establishing what the American Government 
considered necessary, viz : that the arbitrator should determine 
which of the two interpretations of the Loubet Award, the Panama 
line or the line of Costa Rica was the correct one, in conformity with 
said Award. 

The documents to which I have referred on this point, show that, 
until November 2, 1909, all the Governments interested in the 
controversy — Panama and Costa Eica the contending parties and 
the United States as mediator — understood that the diflference 
between the two countries rested only on the failure to come to 
an understanding as to one portion of the line of the Award, 
but not as to the Award itself which had already been ac- 



14 

cepted. The mediation sought for by Costa Rica and accepted 
by Panama was for the purpose of having the two small 
countries come to an agreement as to that portion of the line 
which had not been accepted. Costa Rica had interpreted the 
Award, as far to the line in controversy by drawing it along the 
same spur of the Cordillera starting at Cape Mona, as the Award 
draws it, but not following along the entire spur but up to a certain 
point, from which a line running West-Southwest crosses the 
thalweg of the Tarire or Sixaola river on the left bank of its affluent 
the Yorquin or Zhorquin river. If by interpretation of the Loubet 
Arbitral Award is meant the mere acceptance of the line of the 
Award, explaining that such line must be the most natural, simple 
and easy to understand ; that it constitutes a natural line and that 
undoubtedly it does not go beyond the maximum line of the 
Colombian claims, then Panama also has had her interpretation 
and the question is reduced to a mere drawing of the boundary line 
between the two republics, following for the purpose the most 
correct interpretation of the accepted Award. 

In view, then, of the understanding reached between the con- 
tending parties and with the mediating government as to what 
constituted their differences, Panama vested its Minister in Wash- 
ington on Special Mission, in charge of the settlement of the differ- 
ences under discussion, with ample powers to carry on the 
negotiations, limited however as to the necessity of the solemn 
acceptance, first and above all, in the treaty or Arbitral Convention 
of the Award of the President of the French Republic, of Sep- 
tember 11, 1900. These powers signed by the late President of 
Panama, Mr. Jos6 Domingo de Obaldia, contain that 
provision sine qua non, reaffirmed on the following day by the 
note of the Secretary of Foreign Relations of Panama to the Min- 
ister of that Republic on Special Mission, renewing the assurance of 
the amplest liberty for the negotiation of the Arbitral Convention, 
with the only restriction that first and above all the Loubet Arbi- 
tral Award should be fully accepted. 

When the negotiations were opened with the mediation of the 



15 

American Government, the Kepresentative of Costa Eica introduced 
for the first time in the discussion the point of nullity of the decision 
which by so many repeated acts of his Government had been 
accepted by his country, and at that Representative's request, 
the Secretary of State of the United States amicably sug- 
gested to the Government of Panama to give its Special Minister 
ampler powers so that, without the limitation relative to the accept- 
ance of the Loubet Award, the whole question could be discussed, 
the final point to be submitted to arbitration being that of the 
respective claims of the two Republics as to the true boundary line. 

The Kepresentative of the United States in his note of Feb- 
ruary 3, 1910, informed the Government of Panama of the cablegram 
of the Department of State of the United States, dated on the pre- 
ceding day, requesting that the powers of the Special Minister be 
enlarged. The Secretary of State also informed the Special Min- 
ister, February 2, 1910, that the cable referred to had been sent. 

The Government of Panama gave mature consideration to the 
case, having weighty and numerous reasons for giving its assent to 
the least suggestion of the mediating Government ; but it was not 
possible to do so. Besides the respect which the Panama Gov- 
ernment has for the principle of arbitration, and notwithstanding 
its special interest as a small and weak country in adhering to that 
principle as a safeguard in its weakness, and notwithstanding the 
force of the tradition invariably observed in the boundary question 
with Costa Rica, it was impossible for her to repudiate the 
Award, and she was bound to defend to the last its integrity 
as a constitutional principle. In fact, at the time of the 
inception of the Republic, the Loubet Arbitral Award had 
already been rendered and it was incorporated in the Panama Con- 
stitution, thus becoming a part thereof. One of the Articles of the 
Constitution in describing the territory of the Republic, embraces 
therein the territory adjudicated by the Award. So that the reply 
of Panama to the Charg^ d' Affaires of the United States was a 
complete refusal. The Government of Panama affirmed at the time 
in its reply of February 6, to the American Legation, that both the 



16 

spiiit and the letter of the Constitution permit the Executive of 
Panama to solve the existing boundary differences with Costa 
Rica, always upon the basis of an interpretation of the Award, but 
that in no case is he empowered to make a public treaty by which 
said Arbitral Award might be discussed as to its validity. 

On February 7, 1910, the Minister of Panama on Special 
Mission confirmed more fully the above declarations. In his 
note of that date he informed the Honorable the Secretary of 
State of the United States that the Panama Government would not 
issue powers authorizing the signing of any agreement tending to 
invalidate the Loubet Award, because the Constitution of the Re- 
public, of which the said Award was a part, prohibited such 
act, and because the Award had not only been accepted by the 
Republic of Colombia, by the Republic of Panama and by Costa 
Rica, but by the United States as well. 

There was, besides, a circumstance still more serious for 
Panama which her representative stated with the utmost 
loyalty. President Loubet had made his Award after many 
years of delay in agreeing to arbitration, and many more years 
of work to obtain it. Colombia could very well have supported 
her contention with ultimate success because she possesses 
the annals of the oldest colonial history, dating centuries 
back. She had been one of the best colonies of Spain, and 
her archives contain data and documents relating to the entire 
period of Spanish domination. But as Panama had become sepa- 
rated from Colombia, forming an independent republic, which 
Colombia has not recognized yet, it was impossible for Panama to 
make use of the evidence that Colombia submitted during four or 
five years of discussion. 

At this point in the negotiations, the Secretary of 
State of the United States, who as friendly mediator 
had given the most studious attention to the respective 
attitudes of the Governments of Panama and Costa Rica, and well 
awaie of the desire of Costa Rica that the proposed arbitration be 
as broad as possible, and equally sensible of the considerations 



17 

whicli impelled the Government of Panama to insist upon the 
Loubet Award as a basis for the definitive determination of the 
boundary line, on March 1, 1910, submitted an identical memoran- 
dum addressed to the Eepresentatives of Panama and Costa Piica 
respectively, suggesting a mfethod for the acceptance of the Loubet 
Award, so that the Chief Justice as Arbitrator could draw the 
frontier between the two countries. 

The formula suggested took the form of the following 
question : 

" What is the boundary between the Republic of Panama and 
Costa Rica under and most in accordance with the true interpreta- 
tion and correct intention of the Loubet Award in the light of all the 
historical, geographical, topographical and other fads and circum- 
stances surrounding it as well as under the established principles of 
inter7iational law f " 

The Memorandum was gladly received by the Republic of Panama, 
but the formula suggested as the main basis for the arbitration was 
persistently and vigorously discussed. Comparing this formula with 
that finally adopted and embodied in the Arbitral Convention con- 
cluded on March 17, 1910, it can be seen that it was finally 
divested of all adjectives, modifications and complements which 
might have given rise to the belief that the Loubet Arbitral 
Award could be either altered or disavowed. To interpret 
the Award in the light of all the historical facts amounted to a 
revision and new consideration of the question, the whole ques- 
tion already examined by President Loubet which had been con- 
stantly rejected by Panama. On the other hand, what could be those 
historic facts, except the acts issued by the Kings of Spain at 
different periods during their colonial control of America, as regards 
Costa Rica and Panama, such as royal " cedulas " or Royal orders, 
capitulations, chronicles, laws, decrees and letters ? Again, to in- 
terpret the Award under the established principles of international 
law, was equivalent to subjecting the Award to be either revalid- 
ated or else invalidated in accordance with said principles. 
Panama had contended in order to avoid a new litigation, to 



18 

prevent the bringing back to its beginning of the entire ques- 
tion, the new discussion of an acquired right, at last recognized 
and accepted after many years of struggle. The Eepresentative of 
Panama, therefore, insisted on maintaining that the question to be 
submitted to the Arbitrator, as suggested in the memorandum of 
the Secretary of State, should be divested of any and all considera- 
tions, and this was obtained. The question submitted to the deci- 
sion of the Honorable the Chief Justice of the United States, as 
Arbitrator, was embodied in the Arbitral Convention, devoid of all 
adjectives, complements or modifications. It was simply estab- 
lished that the Republics of Panama and Costa Rica agree to 
submit their differences to the decision of the Honorable the 
Chief Justice of the United States of America, who in the 
capacity of Arbitrator -will determine " What is the boundary 
between Panama and Costa Rica under and most in accordance with 
the correct interpretation and true intention of the Award of the 
President of the French Republic made the 11th of September, 
1900 ? " 

There is nothing relative to historical antecedents nor to the 
established principles of international law in the light of which the 
Loubet Award is to be interpreted. All this was eliminated, 
because it was seen that to leave it standing might give rise to the 
belief that the real intention of the parties to the Convention was 
to invalidate the "Loubet Award. Of course, the Arbitrator could 
not render a decision without having a certain knowledge of the 
case, without taking into consideration facts which may influence 
his judgment, such as, for instance, the result of a survey of the 
territory, in view of a map of said territory and the claims of both 
parties. This is why it was added that the Arbitrator, in order to 
render his decision, shall take into account : 

1st. The facts, circumstances and considerations which 
may have a bearing upon the case ; and 

2d. The limitation of the Loubet Award expressed in the 
letter of His Excellency M. Delcass^, Minister of Foreign 
Relations of France, to His Excellency Senor Peralta, Min- 



19 

ister of Costa Rica at Paris, of November 23, 1900, that this 
bouudarj line must be drawn within the confines of the ter- 
ritory in dispute, as determined by the text of Articles II. 
and III. of the Convention of Paris, of January 20, 1886. 

The first part of this addition has a very general signification 
The words facts, circumstances and considerations do not have a spe- 
cific meaning. Facts is a word of many synonyms ; it means, first of all 
an effect produced or a result achieved, an act, a deed, an event, 
and even a circumstance. It also means, reality, actuality, and 
truth. It is the assertion or statement of a thing done or existing, 
or which is falsely supposed to have occurred or to exist ; it is in 
short a datum. Circumstance also has many synonyms. As its own 
composition indicates, it is that which stands around, which relates 
or is concomitant to an act or thing, an accident of time, place or 
manner which is connected with the substance of a fact or an as- 
sertion or statement. It is likewise a fact and as such it also 
means an event, an occurrence, an incident, a detail, a datum, and 
that is why, in the case of assertions or opinions, it is said under 
the circumstances, that is, taking into account or consideration all 
things. The word consideration represents an act of the mind rather 
than an outside event. It means that which is or must be taken 
into account as the basis for an opinion or action, and further sig- 
nifies reason and motive. 

So that the phrase quoted from the Arbitral Convention, viz. : 
" to decide this (that is the correct interpretation and true inten- 
tion of the Loubet Award) the Arbitrator will take into account all 
the facts, circumstances and consideratio7is which may have a bearing 
upon the case " (in the determination of the correct interpretation 
and true intention of the Loubet Award), the above phrase, I 
say, expresses nothing new to a judge nor anything which 
may justify our trouble in making a minute investigation of the 
question. Your Honor, as an Arbitrator, could never render a 
decision without having taken into account the assertions or state- 
ments of the representatives of Panama and Costa Rica (which are 
facts), nor the data furnished by them (also facts) nor the incidents 



20 

submitteJ (also facts), uor the accidents of time, manner and place 
connected with the evidence, nor the incidents and details which 
as circumstances are also facts, or amount to facts. In short. Your 
Honor, in your capacity as Arbitrator, would not in any case 
decide the question submitted to your good judgment — as to the 
correct interpretation and the true intention of the Loubet Award — 
except after examination, mature deliberation and careful thought, 
and in so acting Your Honor would have done nothing new, 
because it is Your Honor's customary manner and rule of 
procedure. 

It is evident that for the settlement of any question, a certain 
foundation or basis is required, and the stronger the foundation 
the more justifiable tbe decision. Judges possess the cardinal 
element of justice, their judgment, which is neither the entire nor 
the only element of justice. But to form that judgment they need 
to examine all considerations, evidence, claims, averments and 
demands of the contending parties, so as to be able to give each 
what belongs to it, with perfect equity. 

The foregoing explains the superfluous or trite addi- 
tion of the words, facts, circumstances and considerations, 
that the arbitrator must take into account in drawing the 
frontier line between Panama and Costa Rica, under and most in 
accordance with the correct interpretation and true intention of the 
Award of the President of France. 

As regards the limitation of the Loubet Award, expressed iu 
the letter of Minister Delcass^, which Your Honor as Arbitrator is 
to take into account in rendering the decision, this is a concrete 
point of a special and real signification. 

We know, in fact, that M. Delcasse in his answer to the 
Minister of Costa Kica gave the assurance that the physical line of 
the Award would be drawn, without doubt, within the limits of the 
disputed territory. This reply is, in a way, a sort of explanation or 
confirmation of the Loubet Award. But Costa Rica has called this 
a limitation, because she has been under the mistaken impression 
that the line of the Award extends beyond the extreme limits of the 



21 

territory in dispute. Be it as it may, the Loubet Award was made 
more explicit because of that declaration, and Costa Rica, being 
constrained to accept that, in your capacity as Arbitrator, Your 
Honor should draw the boundary line between that country and 
Panama in accordance with the Loubet Award, still demanded that 
in the Arbitral Convention there should be embodied what she was 
wont to call the limitation of the Loubet Award. Panama acceded 
to this and the Award has become a stronger law than ever, as it 
does not reject or disavow what is to be limited and it has been 
agreed that it should be limited. If the boundary line is to 
be drawn in accordance with the Loubet Award, but not out- 
side or beyond the extreme confines of the disputed territory, 
it is clear to me that this must be so because the legal line of the 
Loubet Award is adopted in general terms, and the Award itself 
adopted in its entirety. 

The foregoing is the history of the negotiation of the Arbitral 
Convention by virtue of which Tour Honor is to decide as Arbi- 
trator, the differences existing between Panama and Costa Rica. 
So far as the analysis of the Arbitral Convention is concerned, it is 
an easy matter and I beg leave to proceed. 

Article I. of the Convention embodies the question that Your 
Honor is called upon to decide, as follows : 

Article I. " The Republic of Panama and the Republic 
of Costa Rica, although they consider that the boundary be- 
tween their respective territories designated by the Arbitral 
Award of His Excellency, the President of the French Re- 
public, the 11th of September, 1900, is clear and indisputable 
in the region of the Pacific, from Punta Burica to a point 
beyond Cerro Pando on the Central Cordillera, near the 
ninth degree of north latitude, have not been able to reach 
an agreement in respect to the interpretation which ought 
to be given to the Arbitral Award as to the rest of the 
boundary line ; and for the purpose of settling their said 
disagreements agree to submit to the decision of the Honor- 
able, the Chief Justice of the United States, who will deter- 
mine in the capacity of Arbitrator, the question : what is 



22 

the boundary between Panama and Costa Eica, under and 
most in accordance with the correct interpretation and true 
intention of the Award of the President of the French Ee- 
public made the 11th of September, 1900 ?" 

The only question which has been submitted to Tour Honor is, 
therefore, that concerning the boundary line between the two 
countries. There is no dispute as io the true legal ioundary, which 
which was established by the Arbitral Award of the President of 
France. There is no dispute, either, as to the true physical line " in 
the region of the Pacific from Punta Burica to a point beyond 
Cerro Pando, on the Central Cordillera near the ninth degree 
(9°) of north latitude," as Article I. of the Convention 
above quoted provides that " the boundary between their respective 
territories designated by the Arbitral Award of His Excellency the 
President of the French Eepublic, the 11th of September, 1900, is 
clear and indisputable in that region." The only dispute is that in 
respect of the (rue physical line for the rest of the legal boundary, as 
fixed by the Arbitral Award of the President of France, since 
Article I above quoted establishes the fact that the contending 
parties " have not been able to reach an agreement in respect to 
the interpretation which ought to be given to the Arbitral Award 
as to the rest of the boundary line. 

In order to finally settle their controversy, both parties have 
agreed to submit to arbitration the question of the correct inter- 
pretation and true intention of the Loubet Arbitral Award. This 
Award, which was made as the result of a former treaty of arbitra- 
tion between the contending parties, became the Supreme law of 
the territory for Panama and Costa Eica. The question submitted 
to your Honor is, consequently, before eveiything, a mere question 
of interpretation of a law common to both parties. Your Honor's 
first duty in this controversy may be compared with that which 
you have in your capacity of Chief Justice of the United States 
when you interpret a law passed by the Congress of this Country. 

If there should be a controversy, for instance, between a carrier 
and a shipper, as to the intention of Congress in passing a law, 



23 

the parties would appeal to the Court in order to ascertain the 
correct interpretation and the true intention of the law, as 
passed by Congress. Courts have been created for that pur- 
pose, and their powers and the limits of tbeir jurisdiction have 
been clearly defined by law. On the other hand, when there is a 
question between two nations concerning the correct interpretation 
and true intention of an arbitral award, there is no Court having 
jurisdiction to determine such a controversy. Such a Court must, 
consequently, be created by mutual agreement between the parties 
to attain that end. But there are no laws defining or limiting the 
jurisdiction and the powers of such a Court, and they must there- 
fore, be defined and limited by agreement of the contending nations, 
in the same manner. Thus, then, when such a Court has been 
created, it becomes necessary to examine the convention which 
created it, in order to ascertain the extent of the jurisdiction and of 
the powers which have been conferred upon it. 

By an examination of the convention between Panama and Costa 
Kica it is seen that Your Honor's jurisdiction as Sole Arbitrator is 
limited to deciding the question above quoted and concisely stated 
in Article I. This question may be separated into two parts as 
follows : 

I. What is the boundary between Panama and Costa Eica under 
the Award of the President of the French Republic of September 
11, 1900 ? 

II. What is the boundary between Panama and Costa Eica 
under and most in accordance with the correct interpretation and 
true intention of the Award of the President of the French Eepub- 
lic of September 11, 1900 ? 

The examination of either of these questions will clearly 
show that Your Honor's decision is to be based solely on 
the Award of the President of the French Eepublic, and that, in 
order to determine the boundary line under the conditions stated, 
Your Honor is to do two things, viz. : 

I. Examine the Award of President Loubet above mentioned, 
for the purpose of interpreting correctly and discovering its true 



24 

intention, thus arriving at a conclusion as to how the boundary line 
between the two countries was conceived in the mind of the French 
Arbitrator. 

II. To establish, as the result of such conclusions, what is the 
boundary line between the two countries. 

In other words Your Honor is to ascertain exactly what was 
meant by the French Arbitrator, which can only be done by refer- 
ence to the decision of said Arbitrator ; and then, in Your Honor's 
capacity as an Arbitrator, also in accord with the terms of the Ar- 
bitral Convention under consideration, to designate as the boundary 
line between the two countries that which you think to be the one 
which M. Loubet traced in his mind by the terms of his Arbitral 
Award. 

An Arbitral Tribunal is a Court of special and limited powers. 
While it has the right to decide on the scope of its own jurisdiction 
(Award of the Hague Tribunal in the matter of the Pious Funds) its 
powers are necessarily limited by the terms of the convention 
which creates it. 

Under Sections VI and VII of the Protocol between the United 
States and Mexico in the question of the Pious Funds, the alle- 
gations were limited to a Memorial on the part of 
the United States and Counter-Memorial on the part 
of Mexico. During the proceedings the United States offered to 
submit a reply, to which Sir Edward Fry, one of the members of 
tbe Arbitral Court, objected on the ground that according to the 
terms of the Protocol, there had not been given that Nation the 
right to reply to Mexico's allegations. Upon the admission of the 
Agent for the United States that the objection was well founded. 
Sir Edward Fry said, referring to the Convention : " This is the 
code." (Report of the Agent of the United States in the Pious 
Funds case). 

In the case of Kudloff (Venezuelan Arbitrations of 1903, pages 
192-194 ; Morris report, page 431) the Umpire maintained that the 
Convention " is the fundamental law for this Commission and the 
sole source of its jurisdiction." 



25 

Also in the case of Van Bokkelen (Moore 1822), the Arbitrator 
said: 

" In a word, the Protocol, which must be the guide and 
standard of jurisdiction for the Referee, crystallizes and 
formulates the fundamental grounds of past discussion and 
controversy in a single, definite issue, and furnishes the rule 
of decision." 

In the claim of the French Company of the Venezuelan Rail- 
road, Protocol of 1902 (Ralston Report, page 443), the Umpire 
said : 

" It would seem to the umpire that the question first 
occurring is one of jurisdiction ; in other words, of compe- 
tency. For, however deeply the sympathies of the judge 
may be stirred in behalf of those who have bravely struggled 
and who have seriously suffered, nevertheless there is an 
imperative duty which is primary. That duty is to determine 
the limits which circumscribe him and keep himself within 
the prescribed and fixed bounds. 

" The limits of this Honorable Commission are found 
and found solely in the instrument which created it, the pro- 
tocol of February 19, 1902. An Arbitral Tribunal is one 
of large and exclusive powers within its prescribed 
limits, but it is as impotent as a morning mist when it is 
outside these limits. A reference to the Convention which 
created this Commission will disclose its purpose and pur- 
view." 

The authority of the Arbitrator 

" is derived exclusively from the submission to arbitration, 
and every part of it as well as the documents referred 
to therein must be taken into consideration in order to de- 
termine the extent of such authority. 

American and English Encyclopaedia of Law, p. 669 
(Second Edition). 

" The Arbitrator cannot lawfully go beyond the terms of 
the submission in order to do general justice." 
lUd., p. 672. 



26 

In the case of Stevenson, before the British-Venezuelan Com- 
mission, 1903 (Ealston Keport, p. 451) the Umpire affirmed : 

" Inspection of the protocol of February 13, 1903, be- 
tween Great Britain and Venezuela discloses in the preamble 
the occasion of arbitrating the existing differences and their 
scope or extent, as follows : 

Wheeeas, certain differences have arisen between the 
United States of Venezuela and Great Britain in connection 
with the claims of British subjects against the Government of 
Venezuela. 

" Article III submits to arbitration certain of these 
claims of British subjects reserving some which have been 
dealt with in Article IV. Whence it follows that nothing 
having been submitted to this Tribunal, except the claims 
of British subjects, nothing else can be decided. An 
Arbitral Tribunal between Nations is a tribunal of great 
power within the terms of its creation, but absolutely power- 
less outside thereof. Nothing can be within its terms except 
that which has been decreed by the clear and express agree- 
ment of the High Contracting Parties. The Umpire does 
not find in the solemn covenant which created this Tribunal 
any authority which allows him to decide anything else 
than claims of British subjects, or, in other words and 
affirmatively, he does rot find that he has authority to 
pass upon matters resting solely in unatoned indignities to 
the claimant Government." 

In the Postal Treaty Case, before the Italian- Venezuelan Com- 
mission (Venezuelan Arbitration of 1903, page 665) the Umpire 
says : 

" It is to be borne in mind that claimants presenting 
themselves before the Commission appear before a body of 
limited powers." 

I could easily increase the quotations by other weighty opinions 
from arbitrations both old and recent, which have become in- 
variable juridical doctrine on the subject. It is a well known fact, 
and is held as a principle of international law, that the Protocol or 



27 

Arbitral Conveutiou is the sole source of all power iu the matter 
of arbitration, the rule or standard which should be followed by 
the arbitrator, and the law in which are found the powers beyond 
which the arbitrator is powerless. I believe, however, that the 
examples quoted suffice to show that. Tour Honor's authority 
being derived exclusively from the Protocol or Arbitral Convention 
dated March 17, 1910, Tour Honor's jurisdiction is limited to decid- 
ing the simple question : 

What is (he boundary between Panama and Costa Rica under and 
most in accordance luith the correct interpretation and true intention 
of the Aiuard of the President of the I<rench Bepuilic made the 
nth. of Septeioher, 1900 ? 

I will now take the liberty of adding a few quotations from 
authors of renown, bearing upon the effect of excess of the authority 
conferred upon an arbitrator, and also dealing with the force of the 
decisions which he pronounces and their final, irrevocable and obliga- 
tory character when in making them he has kept within the limits 
of said powers. 

Vattel, in section 329, on "Arbitration," Book II, Chapter 
XVII, in the second volume of the work " Le Droit de Gens ou 
Principes de la Loi Naturelle," cites the cases when the parties 
have the right to refuse to submit to an arbitral award. The 
first of the cases mentioned is 

" when the Tribunal makes an award in excess of the juris- 
diction which has been conferred upon it." 

and adds the following : 

"In order to avoid all difficulty, to remove any pretext 
for bad faith, it becomes necessary to determine exactly in 
the agreement, the subject of the dispute, the respective op- 
posite claims, the demands of the one and the opposition of 
the other. This is what is submitted to the Arbitrators, on 
which the promise is made to abide by their decision. Thus, 
they, if their award does not exceed these precise limits, it is 
necessary to submit to it." 



28 

Taylor says, in his work on " International Public Law " on page 
379, that it is generally admitted that arbitral decisions or awards 
may be honorably disregarded when the Tribunal has exceeded the 
powers conferred upon it by the articles of submission ; and Heffter 
in his " Droit International d'Europe " Birgson edition, page 210, 
makes a similar statement, viz : that the award or decision may be 
disregarded if it has been rendered beyond the stipulations of the 
Arbitral Convention. 

Accoiding to A. Merignhac, Professor in the Law College of 
Toulouse, " arbitrators may exceed their powers in various ways, 
among others, by exceeding the limits of the powers conferred upon 
them." (Traite Th^orique et Practique de I'Arbitrage Inter- 
national," Book II, Chapter III. Causes de Nullite de I'Arbitrage 
International, Section II). 

Also, Eivier, in Vol. II, page 185 of his " Principes de Droit de 
Gens," says that the State against which a decision has been ren- 
dered may have just reasons to refuse its execution, and that this 
occurs most frequently in cases in which the Arbitrator has exceeded 
his powers or has not conformed to the terms of the convention. 

Pradier Foeder^, Kamarowsky, Fiore and Oppenheim, all maintain 
the same principle of the subjection of the Arbitrator to the terms of 
the Arbitral Convention. This is the only way of insuring the 
validity or irrevocable character of an arbitral award, since a viola- 
tion, by the Tribungil, of the Arbitral Convention, no matter in what 
way, is a fundamental ground of nullity. Such violation comprises 
cases in which the Tribunal decides questions which have not been 
submitted to it, or omits to decide those which were, or otherwise 
disregards the terms of the Convention, or the rules adopted for 
the decision of the controversy. 

Calvo in his " Droit International Theorique et Practique," 
page 1774, holds that parties who submit a question to arbitration 
are by this fact morally bound and obligated to comply with the 
award unless it has been rendered when the Arbitrators were not 
suflSciently empowered for that purpose or when they have decreed 
something beyond the terms of the Convention. 



29 

Bliintschli, likewise, in his " Treatise on Codified International 
Law ", in the chapter on Arbitrations, Book VII, paragraph 500, 
maintains the same doctrine : 

" Arbitration, he says, may deal with points of law or 
with points of fact. As a general rule the points which are 
to be decided are determined in advance, in order to prevent 
disagreements and difficulties ; and 

" The award of the Arbitrators is void if it deals with 
points which are not within their jurisdiction." 

Finally, the " American and English Encyclopaedia of Law " 
(Arbitration and Awards, Vol. 2, page 675 et seq.) expresses the 
following principles of general jurisprudence which are perfectly 
applicable to the case in hand : 

" The power of the arbitrators, when not modified or 
defined by the statutes, is derived entirely from the sub- 
mission, but every part of the submission, including papers or 
documents to which it refers, should be taken in considera- 
tion to determine their power." (Power of the Arbitrators, 
page 675). 

" An arbitrator cannot legally exceed the powers con- 
ferred upon him by the submission. Any award given in 
excess of the authority so conferred upon him will be void." 

" Only the questions that have been distinctly submitted 
must be considered by the Arbitrator, who cannot modify 
them nor extend to others, though they may be intimately 
related to the former." (Excess of Authority, page 676). 

I have made the foregoing quotations, which I could reinforce 
with others from the decisions of the Supreme Court of the United 
States, and of some Arbitral Tribunals, only as a matter of pro- 
cedure and to meet the demands that the Eepresentative of Costa 
Rica might make upon this point, but not because I fear that 
Your Honor would deviate from the rule established in the Proto- 
col or Arbitral Convention. I hold the highest opinion of Your 
Honor's judicial judgment, and feel certain that having the Loubet 
Award as the basis upon which your decision must rest, and having 



30 

to determine the boundary line between Panama and Costa Rica, in 
the words of the Protocol, under and most in accordance with the 
correct interpretation and true intention of the Loubet Award, 
Tour Honor will establish the boundary line following the legal 
line as drawn in the Loubet Award, neither more nor less, as if Your 
Honor — to use a comparison — should draw a line over a sheet of 
paper following a tape or a wooden or rubber rule furnished for the 
purpose. 

I do not think it necessary to enter into considera- 
tions regarding the interpretation of the Arbitral Con- 
vention. On this point I beg to refer to Sedgwick's opinion 
(Second Edition, page 191) that " it is not permissible to interpret 
that which does not need interpretation ", an opinion with which 
all jurists are in accord. The Arbitral Convention by virtue of 
which Tour Honor was appointed sole Arbitrator, and which de- 
fined your powers as such, is plain and clear, without ambiguities 
or deficiencies, and, taken as a whole, as it must be taken better to 
understand it, its conclusions are precise. Tour Honor is the sole 
Arbitrator to decide upon the differences existing between Panama 
and Costa Rica ; these difi'erences were decided by a former arbi- 
trator, and his award has been acknowledged and accepted as to 
the drawing of the legal boundary line ; the same physical line has 
also been recognized up to a certain point, and there is no dispute 
or controversy except as relates to the rest of the physical line ; 
to determine this line Tour Honor has a foundation, that ia, the 
legal line of the previous Award ; Tour Honor is to interpret that 
previous Award and discover its true intention, and thus the de- 
cision which Tour Honor makes upon the subject, whatever it be, 
shall be held as a perfect and binding Treaty between the High 
Contracting Parties, and the line fixed shall be deemed final, con- 
clusive and without appeal. 

From the foregoing, then, and in view of the preceding history, 
supported by documents, of the Arbitral Convention of March 17, 
1910, by which Tour Honor is empowered to act as sole Arbi- 
trator in the boundary question pending between Panama and 



31 

Costa Rica ; and taking into consideration the analyzed terms of 
said Arbitral Conventiou, as well as the doctrine of jurists and 
authors relative to the force of Arbitral Awards, I may consider 
established, as indisputable points, the following : 

I — That there is only one question which has been sub- 
mitted to Your Honor for settlement, and that this question 
is to determine the boundary line between Panama and 
Costa Rica under and most in accordance with the correct 
interpretation and true intention of the Award of the Presi- 
dent of the French Republic of the 11th of September, 1900. 

II — That this Award of the President of the French Re- 
public has been solemnly recognized and accepted by Pan- 
ama and Costa Rica in the Arbitral Convention eigned at 
Washington by the Representatives of those countries on 
the 17th of March, 1919, by which Your Honor is empow- 
ered to act as Sole Arbitrator ; 

III — That the Loubet Award having been solemnly ac- 
cepted, the legal boundary between the two countries which 
that Award states is also accepted, and on this point Your 
Honor's task is materially easier, as it is in the construction 
of the boundary or physical line in the region of the Pacific 
from Punta Burica to a point beyond Cerro Pando on the 
Central Cordillera, near the ninth degree (9°) of north 
altitude ; 

IV — That the only dispute being in reference to the 
physical line on the rest of the legal line, i. e., 
on the side of the Atlantic from Point or Cape 
Mona, along all the spur which starts from this point or 
cape as far as the Central Cordillera and then by the 
Central Cordillera to the ninth degree (9°) of north latitude, 
as that legal line was fixed by the Award of the President of 
the French Republic, — Your Honor's Award must determine 
this disputed physical line, in accordance with the legal line 
of said Award. 



32 

V — That there wo aid be an exceeding of authority or power, 
and Your Honor's decision would fail to be a perfect and 
binding treaty between the parties, but on the contrary 
would be void, and the boundary line &\ed would not be 
held as final, conclusive and without appeal, should Your 
Honor disregard the Award and, instead of taking it as a 
basis for the physical drawing of this line as if it was a tape 
or rule for drawing a line on paper, adopt another method of 
procedure ; 

VI — That the true intention of the Loubet Award, as it 
was expressed by the Representative of Costa Eica in his 
letter to Minister Delcasse, of September 29, 1900, was, in- 
disputably, that of giving to both countries a natural bound- 
ary, following the summits of the Central Cordillera and 
those of the spur of that Cordillera which starts at Punta 
Mona and unites with said Central Cordillera ; 

VII — That the interpretation of the legal line of 
the Loubet Awai-d from Punta Mona and along the 
range or spur which, starting from that point, runs to 
the Central Cordillera is the simplest and most correct 
one, as well because it is continuous and offers no difficulties 
for the drawing of the physical line, as because it embraces 
a whole valley and does not cut it into sections in an irregu- 
lar way ; and 

VIII — That said legal line as fixed by the Loubet Award 
lies within the extreme limits of the Colombian claim, as 
they appear from Articles II and III of the Paris Con- 
vention of January 20, 1880, and the physical line which is 
to be drawn within said limits, in conformity with the note 
of Minister Delcasse, of November 23, 1900, will have only 
to follow that legal line in order to fulfill the above stated 
requirement. 

It is now for Your Honor to decide. Your Honor's decision 
settling the question which has been submitted to your unbiased 



33 

and learned judgment, will put au end forever to the boundary 
dispute between two neighboring and sister neighbors, called, 
by Nature, to a common destiny. The decision thus made will 
carry the seal of that justice for which, within and without 
the United States, the decisions of the Supreme Court of the 
United States, the great American Bepublic, are distinguished and 
will increase the number of learned decisions daily quoted in the 
world, by diplomats, jurists and writers on International Law, 
because those decisions are the result of learning and the strictest 
justice. 

Belisabio Pobras. 



[11410] 



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